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One of the most common responses to various complaints about giant tech companies is that you can just not use their products and services. Many people have pointed out just how difficult that would really be, but Gizmodo's Kashmir Hill decided to try it for real: she cut Amazon, Facebook, Google, Microsoft, and Apple out of her life for a week each, followed by a week without any of them. Her report on that final, empty week is coming out soon, but in the mean time she joins us on the podcast to talk about what it's like to live without big tech.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Let's just get this out of the way up top and say that I'm fully expecting this article to be overrun by the same type of folks who showed up after I criticized supposed "free speech warrior" Jordan Peterson when he filed a bullshit defamation case against a university after some of that university's employees suggested Peterson was similar to Hitler and compared him to a white supremacist. As we pointed out then, even if this was misleading, having someone have a negative opinion of you, and even suggesting you hold views you might not hold, is far from defamatory. And, suing someone for their opinion of you is very much the opposite of supporting free speech, and is an especially stupid look for people going around pretending to be free speech warriors.And, now we have yet another similar case, this time involving Proud Boy founder Gavin McInnes suing the Southern Poverty Law Center for defamation concerning SPLC's practice of naming certain individuals and groups as "extremist" on its "Hatewatch" or "Extremist Files" lists. And, let's be clear: if you already love SPLC and hate McInnes, you're already going to think this is a dumb lawsuit. But this post is directed towards other folks as well: those who think SLPC has a bit of an itchy trigger finger in declaring someone part of a hate group (or declaring groups as hate organizations) and who actually believe (per McInnes' own claims) that he's not a racist, not a Nazi, and he's just a "humorist" promoting "western values."If you believe that, then you have to throw out the "western value" of free speech under the 1st Amendment, because that's exactly what McInnes is attacking here, with the help of lawyer Ron Coleman. This is particularly disappointing, given that we've covered Coleman's legal work in the past, including his big trademark win for The Slants at the Supreme Court, noting that the US Patent and Trademark's office refusal to hand out trademarks based on its determination that a trademark could be "offensive" violated the First Amendment as a content-based regulation. Coleman has also been on the right side of crazy anti-free speech lawsuits in the past, including fighting back against Brett Kimerlin's famously vexatious lawsuits against critics. Of course, the fact that Coleman was part of the team who sued Google on behalf of Gab.ai for being kicked out of the Android Play Store was, perhaps, a warning that Coleman's view of free speech is a bit different than most 1st Amendment champions.Let's be clear on this: the lawsuit is bullshit. And it seems likely to be thrown out. Unfortunately, it was filed in Alabama which has no anti-SLAPP statute, which is a reminder that (1) every state should have an anti-SLAPP statute and (2) we need a federal anti-SLAPP statute. However, the lawsuit itself is a joke. It is premised on the claim that even though SPLC's designation of a person or organization onto any of its lists is clearly a statement of opinion rather than fact, because SPLC is widely respected by some, that magically makes it defamatory. This is... what's the word again? Oh, right: nonsense.

So yesterday, we noted that Article 13 was back on thanks to an apparent "compromise" between the French and the Germans as to whether or not small internet platforms would be exempted from Article 13. France was pushing for no exemption and that the same rules apply to everyone, while Germany demanded some protections for smaller companies (those making less than €20 million per year). We knew, according to the reports coming out of Brussels, that France had won, but now the details have come out and it's worse than we thought.The new plan does have an "exception" for small companies, but it is so ridiculous as to be non-existent. To qualify, a company has to be:

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Nearly two years ago, Mississippi governor Phil Bryant signed a bill reforming the state's asset forfeiture programs. The state needed it. Mississippi's law enforcement has directly profited from asset forfeiture for years. This has been combined with an extremely low evidentiary bar and zero reporting requirements to completely skew the incentives. Making it so easy to just take stuff from citizens has resulted in things like this:

While FCC boss Ajit Pai is best known for ignoring the public and making shit up to dismantle net neutrality, his other policies have proven to be less sexy but just as terrible. From neutering plans to improve cable box competition to a wide variety of what are often senseless handouts to the industry's biggest players, most of Pai's policies are driving up costs for the rural Americans and small entrepreneurs he so breathlessly pledges fealty to.One of Pai's biggest targets has been the FCC's Lifeline program, an effort started by Reagan and expanded by Bush that long enjoyed bipartisan support until the post-truth era rolled into town. Lifeline doles out a measly $9.25 per month subsidy that low-income homes can use to help pay a tiny fraction of their wireless, phone, or broadband bills (enrolled participants have to chose one). The FCC under former FCC boss Tom Wheeler had voted to expand the service to cover broadband connections, something Pai (ever a champion to the poor) voted down.Some of the most frequently ignored in the battle for better connectivity are native populations and tribal areas. Under Chairman Ajit Pai's "leadership," the FCC voted 3-2 in late 2017 to eliminate a $25 additional Lifeline subsidy for low-income native populations on tribal land. As part of Pai's effort he also banned smaller mobile carriers from participating in the Lifeline program, a move opposed by even the larger companies (Verizon, AT&T) that stood to benefit.The courts didn't much like Pai's attack on what, by any measure, was a pretty modest subsidy with historically bipartisan support. Back in August of 2018, the US Court of Appeals for the District of Columbia Circuit stayed the FCC decision pending an appeal. That same court late last week issued a ruling (pdf, hat tip Ars Technica) reversing the FCC's decision, shoveling the entire affair back to the FCC to try again. The court ruling rather politely points out that the lion's share of the FCC's justifications for its attack on Lifeline appear to have been, for lack of a more technical term, pulled straight from the FCC's ass:

Your DNA may seem like a personal thing, but a number of companies specializing in DNA testing are ensuring it's anything but. Whether you're looking for markers identifying health risks or simply want to see who you're related to, you're giving these companies permission to create a pool of DNA samples almost anyone else can access.Law enforcement has taken note of these developments, creating fake accounts to submit samples from crime scenes in an effort to close out cases. Whether or not we agree with law enforcement's misrepresentation, there's very little standing in the way of the government accessing your DNA sample via a third party. The thing that makes people unique becomes little more than a third party record -- only a subpoena away from being in the government's possession.But even subpoenas aren't necessary if DNA companies decided to partner up with law enforcement by giving agencies access to their databases. That's what's happening with Family Tree, a company specializing in in-home DNA testing kits, as Salvador Hernandez reports for BuzzFeed.

Preprints are emerging as a way to get research out to everyone free of charge, without needing to pay page charges to appear in a traditional open access title. The growing popularity is in part because research shows that published versions of papers in costly academic titles add almost nothing to the freely-available preprints they are based on. Now people are starting to think about ways to put preprints at the heart of academic publishing and research. In the wake of the EU's "Plan S" to make more research available as open access, there is now a proposal for "Plan U":

It's not much but it's a start. Chicago's police force has spent several years vying for the title of "Worst PD in America." Between its routine deployment of excessive force to its off-the-books "black site" where arrestees are separated from their humanity and their Constitutional rights, the Chicago PD has been a horrific mess for several years.A federal judge has approved a consent decree that would enact reforms aimed at repairing the trust the PD has damaged for decades.

Over the past couple of years, we've discussed Russia putting in what is supposed to be an extreme site-blocking policy, in part to curb piracy. There has been a fair amount of mostly anecdotal evidence that has suggested that the video pirate market in Russia has actually increased during this time, while there is very concrete evidence as to the insane amount of collateral damage that the site-blocking policy has caused. Some found this puzzling, but new data out of Russia suggests that the effects on piracy are muted at least in part because of an explosion in new piracy sites or mirrors of blocked sites.

Grifters just keep grifting. Paul Hansmeier, former copyright troll and more recent ADA troll, is being referred to the Supreme Court of Minnesota for discipline. Last seen trying to weasel his way into bankruptcy to avoid several judgments against him, Hansmeier has had his law license suspended and is facing the possibility of more than a decade in prison.Now there's this, which asks how much schadenfreude can one person possibly provide?

Every Super Bowl is greeted with the same breathless stories about sex trafficking. As thousands of visitors descend on the unlucky host of The Big Gameâ„¢, local law enforcement agencies -- sometimes accompanied by the DHS -- are there to claim there will be a sex trafficking victim for every Super Bowl attendee. Hundreds of law enforcement officers perform sweeps costing taxpayers millions of dollars. And every year, it's the same story: very little sex trafficking found, but a whole lot of sex buyers and sex workers are cited and/or jailed.Prostitution may be the oldest profession, but it couldn't have been far ahead of "law enforcement spokesperson." Someone is always on the scene to spout meaningless numbers to press stenographers in order to perpetuate the myth that large gatherings = sex trafficking en masse. Few journalists dig into these claims.Elizabeth Nolan Brown of Reason does perform the due diligence local journalists won't. Following the 2017 Super Bowl, Brown obtained booking sheets to see if law enforcement had snagged dozens of sex traffickers in the 750+ arrests made pre-Super Bowl.

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When last we checked in on the EU Copyright Directive it had been put on hold when the European Council (with representatives from all the member states) didn't have enough votes to move forward on a so-called "compromise" draft. Most of the council rejected it for the right reasons -- though a few (including France) were holding out to make the law worse. Since then there has been an ongoing back channel negotiation between France and Germany over whose vision would win out. Both of them support very problematic versions of the Directive, though France's is worse. Specifically, France doesn't want any exemptions for smaller internet websites in Article 13 (which will effectively make internet filters mandatory), while Germany wanted to include at least some safe harbors for smaller sites. After a bunch of back and forth, it's now being reported that Germany has caved to France and will now support the Directive, with very little in the way of protections for smaller sites. This is on top of all the other awful stuff in the Directive, including mandatory filtering (that they pretend is not mandatory filtering), huge fines, and liability for any site allowing infringement. The draft apparently still includes a weird and mostly useless safe harbor for sites hosting user-generated content -- which is what made the legacy entertainment industry bail out on its support of the Directive.So, to be clear, there is now a draft that is worse than the draft that couldn't get the Council's approval a few weeks ago, and that will have an even bigger impact on the internet by sweeping up tons of smaller sites as well as the larger ones, which will do serious harm to any sites that host user-generated content. And you can't find anyone -- outside of the company selling internet filters -- who supports this. The internet companies are all still against the bill. The legacy entertainment companies are whining that it doesn't go far enough.And, yet, this draft is likely to be added back on the schedule for a meeting this Friday.There is nothing good about this. The EU bureaucrats negotiating this get really, really annoyed by anyone suggesting that this bill will kill off "memes," but that's not an exaggeration. The bill is literally designed to make it impossible for a site that has not purchased licenses from everyone to allow users to post new content. Meme culture was built almost entirely on free and open message boards and social media, without licenses. But hosting such a site in the EU will now be effectively impossible -- or very, very expensive, with massive restrictions, filters and lockdowns. In such a world, it is difficult to see how new memes can take off, outside of a narrowly prescribed set of "officially sanctioned/licensed" memes -- and we all know what kind of quality that will bring.This whole thing is an exercise in stupidity, brought about by a cynical legacy entertainment industry that made up a fake concept called "the value gap" that they insisted needed to be closed. And the only way to "close" it, according to the very same lobbyists, was to effectively turn off what made the internet great: the fact that it is, and has always been, an open medium for communication and sharing.This can still be stopped, but it's going to rely on the EU Parliament actually having a backbone and saying that this is not acceptable. And that is going to require people in Europe to contact their MEPs and telling them not to wreck the internet.

So we recently noted how the FCC pushed through some policy changes it proclaimed would dramatically speed up the deployment of fifth-generation (5G) wireless technology. According to the new guidance, cities will be limited in terms of how much money they can charge carriers to place cell technology like small cells on government property in public rights of way (traffic lights, utility poles). The policy changes also impose strict new timelines and operational restrictions making it harder for localities to stand up to giant nationwide cellular carriers.But cities like Philadelphia, numerous small counties, and consumer groups disagreed, stating that the FCC's policy changes were little more than a hand out to large carriers, with the price caps barely covering local government costs to study, support and maintain the numerous small cell placements needed to fuel 5G. In some instances, the FCC's new order invalidated existing contracts local governments had already taken months or years to negotiate with wireless carriers.Consumer groups say the FCC's order also ties local governments' hands in instances where they might need to actually hold AT&T, Verizon, or T-Mobile accountable for doing something wrong.While the FCC's decision was already being criticized as an over-reach, that controversy just got much louder. This week, the heads of the House Energy and Commerce Committee, and the Subcommittee on Communications and Technology (Frank Pallone and Mike Doyle) fired off a letter to the FCC effectively accusing the agency of colluding with carriers to help ensure the industry's favored policies had a better shot surviving a court challenge. The letter strongly implies that the Representatives already have whistleblower evidence of said collusion:

Freedom of information laws have given the public a peek inside the government agencies that were always supposed to be accountable to the public. Obviously, these laws have never been welcomed by government agencies. Plenty of documents have been released showing just how much of your tax dollars governments are wasting. But some of the most frustrating wastes are the tax dollars expended to keep documents out of the public's hands.Most of that spending takes the form of playing defense against public records lawsuits. But some of it comes from preventative steps taken to keep as much information away from citizens as possible. Andrew Norton points us to a document leaked to a Kent (UK) press outlet which instructs Kent government entities how to keep the public as unaware as possible of the government's Brexit contingency plans.

This week, our first place winner on the insightful side is BentFranklin with a response to the federal judge who ruled that boycotts aren't protected speech:

At the beginning of the year, we launched our public domain game jam, Gaming Like It's 1923, with a one-month time limit — and now the entries are in! We figured we'd get a dozen entries, maybe two, but we're with a bunch of last minute entries slipping in under the deadline, we're thrilled to say we've got 35 games based on works that entered the public domain this year.We've begun the judging process, with our huge panel of great judges. They need a little time with the games, but until we announce the winners in you can try out all the entries for yourself. There's a mix of card games, narrative roleplaying games, browser-based video games and all sorts of creative takes on classic (and not so classic) works. We haven't finished exploring all the entries ourselves yet, and we hope you enjoy discovering them with us!Stay tuned for an announcement of the winners later this month. We're awarding prizes in six categories:

It's nearly my birthday again, which of course can mean only one thing: we have to write up a post trying to explain to people that the NFL is completely full of shit in what it thinks its trademark on "Super Bowl" allows it to restrict. This has been something of an annual series for us, since the NFL really enjoys pulling out legal threats to bully businesses and churches over using factual phrases that do not in any way represent actual trademark infringement. The NFL certainly can restrict who claims to endorse the Super Bowl, or who can vaguely indicate some affiliation with the NFL or an NFL team, but the league instead likes to pretend that nobody can factually state that there is a thing called a Super Bowl and that it occurs at this time of year.The output of this game of make believe is the world being a dumber, more cynical place. Businesses everywhere use euphemisms for the Super Bowl, such as "the big game." Everyone knows what the euphemism means, yet the NFL usually lets this kind of thing slide. This myth about what is and is not infringement has in part been perpetuated by non-Techdirt media outlets that parrot the NFL's claims, or at least warn everyone that the NFL is litigious. Which... thanks.Most recently, this type of parroting comes in the form of articles such as this one, unhelpfully titled "Fear The Shield." To be fair to that post, the whole thing is fairly full of comments from exasperated business owners being confused as to how the NFL can trademark facts when it cannot.

Stop me if you've heard this one before: the legacy entertainment industry embraces a "new" DRM that it insists will change everything, and everyone will love it. And then, because of various reasons, they kill it off and people get screwed. Yeah, it's happened over and over and over and over and over and over again. It's one of the points we've raised from the very beginning on this site: buying into DRM means that you are relying on a company to continue to let you have access to the content you legally purchased a license to, and there's no requirement that they have to continue giving you access.And here we go again, with Ultraviolet. If you don't recall, we first wrote about Ultraviolet in 2010, when most of the major movie studios (notable exception: Disney) stepped up to support what they tried to pitch as a kindler, gentler DRM that wouldn't be so damn annoying. Of course, from the beginning it basically sucked and the studios started trying to give away bad movies to get people to sign up. And then, a few years later, they tried giving away more movies. The only other time in the last decade we mentioned Ultraviolet was that time that it pissed off the backers of a super successful Kickstarter project by making it difficult for thousands of people to watch the movie they'd backed.Anyway, Ultraviolet is now dead. The studios are killing it off and most people won't miss it. Of course, as with some of those previous stories, there is a half-hearted effort under way for the few people who actually used Ultraviolet to have a method of retaining access to the films they purchased, but you have to keep them tied to a specific retailer now. Of course, part of the reason for the shutdown of Ultraviolet is that Disney (who, as you recall, never joined UltraViolet, and went its own way) has built up its own system, Movies Anywhere. However, as the article above notes, Movies Anywhere is a bit of false advertising, as it's only available in the US. People outside the US are... pretty much screwed as of right now.As with many past DRM shutdowns, this really won't impact that many people, but that's kind of besides the point. It will still be a pain in the ass for the people who actually "did the right thing" according to the industry, and paid up. And they end up paying for a really annoying experience that could possibly even end with them no longer having access. Punishing the people who actually want to pay and want to support you seems like a really dumb way to run a business -- but here we are. This is yet another reason why some people who would otherwise want to pay end up pirating works anyway: they don't have to deal with this shit because they're not reliant on big, dumb studios deciding to keep DRM servers up for more than a decade.

Qualified immunity has taken the court system as far away from justice as any one doctrine can. Rights can be freely abused so long as the abuser does it in a novel way or can mumble something about "feared for my safety" while under oath. For the most part, it just sucks to be an average citizen whose rights have been violated. Unless you can show a court held this specific violation -- under very specific circumstances -- to be unlawful, you're stuck with zero recourse for obvious wrong perpetrated by the government.It's not just abusive cops that benefit from qualified immunity. It's also vindictive district attorneys, like the one in a recent case [PDF] reviewed by the Eleventh Circuit Court of Appeals. A man falsely accused of kidnapping and rape spent seven years in prison for a crime he didn't commit before being exonerated by a DNA test. The results of this test were given to district attorney Spencer Lawton, who confirmed the results. The conviction was vacated and the state wisely decided not to take another prosecutorial pass at the falsely accused man.So far, so good, except for the seven years of freedom wrongfully taken from Douglas Echols. When lawmakers introduced a bill offering compensation for Echol's wrongful imprisonment, Spencer Lawton decided to start lying.

As the EU is still trying to figure out what it's going to do about the highly contested EU Copyright Directive, it appears that at least one of the controversial parts, the ridiculous Article 11 link tax, is spreading to the US. David Chavern, the CEO of the News Media Alliance (a trade group representing legacy news publishers), is agitating in the NY Times for a US version of Article 11. The article if is so chock full of "wrong" that it's embarrassing. Let's dig in.

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As we mentioned last October, there's several state AGs now investigating who was behind those bogus comments that flooded the FCC's website during its controversial net neutrality repeal. Millions of those fake comments used the identities of dead or otherwise oblivious people, and were posted by a bot pulling from a hacked database of some kind. The goal appears to have been to flood the zone with bullshit, undermining trust in the public's only chance to comment on what may just be the least-popular tech policy decision in modern internet history (though SOPA/PIPA got pretty damn close).Gizmodo's Dell Cameron, who has been an absolute marvel at digging through this bog, has dropped an impressive bombshell that fills in a lot of longstanding gaps in identifying who was behind this astroturfing effort. The subject is weedy, so here's the pertinent bit:

Countries around the world continue to wage a not particularly subtle war on the use of virtual private networks (VPNs) and encryption. In Russia, the government has all but banned the use of VPNs by layering all manner of obnoxious restrictions and caveats on VPN operators. The goal, as we've seen in China and countless other countries, is to ban VPN use without making it explicitly clear you're banning VPN use. The deeper goal is always the same: less privacy and online freedom for users who use such tools to dodge surveillance or other, even dumber government policies.Of course there's plenty of companies eager to see VPN use banned as well, whether it's the entertainment industry hoping to thwart piracy, or broadcasters trying to hinder those looking to dance around geographical viewing restrictions. Lost in the hysteria is usually the fact that VPNs are just another security tool with a myriad of purposes, most of which aren't remotely nefarious and shouldn't be treated as such.Apparently, you can count Canadian telecom incumbent Bell among the companies hoping to ban VPN use. Anja Karadeglija, the editor of paywalled telecom news outlet the Wire Report, obtained documents this week highlighting how Bell had been pushing Canadian Foreign Affairs Minister Chrystia Freeland for a VPN ban to be included in NAFTA negotiations. Why? It doesn't want users using VPNs to watch the US Netflix catalog:

As Techdirt noted last September, corporate sovereignty -- the ability of companies to sue entire countries for allegedly lost profits -- has been on the wane recently. One important factor within the EU was a decision earlier last year by the region's top court that investor-state dispute settlement (ISDS) -- the official name for corporate sovereignty -- could not be used for investment deals within the EU. The reasoning was that ISDS courts represented a legal system outside EU law, which was not permitted when dealing with internal EU matters. As a direct consequence of that ruling, the Member States of the EU have just issued a declaration on the legal consequences (pdf). Essentially, these are that all bilateral investment treaties between Member States will be cancelled, and that corporate sovereignty claims can no longer be brought over internal EU matters.However, that leaves an important question: what about trade deals between the EU and non-EU nations -- can they include ISDS chapters? In order to settle this issue, Belgium asked the Court of Justice of the European Union (CJEU) whether the corporate sovereignty chapter of CETA, the trade deal between the EU and Canada, was compatible with EU law. As well as clarifying the situation for CETA, this would also provide definitive guidance on the legality of ISDS in past and future trade deals. As is usual in cases sent to the CJEU, one of the court's top advisers general offers a preliminary opinion, which has just been published (pdf):

In the smartphone era, "distracted driving" is a serious, and well-known, problem. Official warnings about poor driving habits are as old as the automobile itself. The New York Times published a Pulitzer-winning series on distracted driving back in 2009.Increasingly, technological assists are available for those seeking to manage their smartphone's distractions while in the car. Apple integrated a "do not disturb while driving" mode into iOS 11, and Google has long had similar functionality in its Android Auto app. Multitudes of third-party smartphone apps exists to address the issue. Finally, more than 50 companies are working on what may be the ultimate solution to distracted driving: autonomous vehicles.Unfortunately, the U.S. patent system creates warped incentives for emerging software fields like road-safety features. Rather than competing in a challenging space, some players are seeking broadly-worded patents, then hope to sit back and extract profits later.That may be the strategy of the International Business Machine Corp., which has acquired more U.S. patents than any other company for decades now. This week, IBM was awarded U.S. Patent No. 10,191,462, describing a "Vehicle electronic receptionist."IBM likely has the resources to make technology to manage communications while driving. But the '462 patent describes nothing of the sort. Instead, IBM's patent simply describes a computerized decision-making process.The patent's Claim 1 describes a computer system that determines the "driving context" of a vehicle; analyzes an incoming communication; and then determines an "electronic action" in response, considering various weights and risk factors. The electronic action could be "taking a message, providing a silent or audible notification… [or] providing an automated response."Other claims add more layers to the analysis, like considering road conditions, doing voice analysis on a voicemail, or considering whether a passenger is sleeping before deciding to put a call through.Essentially, IBM has described a futuristic car computer system that will analyze the driving conditions and the context of an incoming text or call, then use some unspecified type of AI to decide what to do about the communication. The specification is filled with empty platitudes typical of software patents, like "[t]he computer system may be described in the general context of computer system executable instructions, such as program modules, being executed by a computer system." Aside from hand-waving like this, the patent has essentially no information about how one would actually create the claimed system.IBM: Ignore the "Troll Scare"Some of the claims describe good ideas that could be useful parts of automotive software in the future. But the patent is just that—a list of ideas, not instructions for executing the ideas or creating anything. IBM's patent offers no code, no algorithms, not even a vague description of how the rules might work.We've seen this problem before, in which the Patent Office awards a patent not to the first proven inventor, but to the first applicant who describes a task using technological and legal jargon that patent professionals respect. The Patent Office and the Federal Circuit have been far too willing to approve patents that merely state the idea of applying rules without even specifying what those rules are. The public gains nothing from companies getting patents on the mere idea of using an algorithm to solve a particular problem. Patents like the '462 patent leave all of the hard work—actually writing, debugging, and deploying software that solves the problem under real-world conditions—as an exercise for the reader. And they allow IBM to exclude the public from making or creating any of the wide range of algorithms that these broad patent claims could ensnare.In our view, IBM's new patent should fail under the Supreme Court's Alice v. CLS Bank decision, which holds that you can't patent basic decision-making processes by adding references to generic computer hardware and software. Given that, it may come as no surprise that IBM is lobbying to throw out the Alice precedent. In a recent interview, top IP executives from IBM explained their plans to demolish Alice by getting Congress to re-work Section 101 of the patent laws, which bars abstract patents. "Every time we try to enforce a patent, we get a 101 defense that comes back at us," said IBM Chief Patent Counsel Manny Schecter. IBM VP Mark Ringes said he's hearing "positive messages from Congress" about changing Section 101 to better suit big patent owners.Ringes went so far to claim that the "troll scare is largely just noise now." That assertion flies in the face of the patent litigation landscape. By one estimate, about 90 percent of patent lawsuits filed last year in the tech sector were filed by non-practicing entities. IBM appears to be downplaying the damage done by patent trolls because its business interests have become aligned with them. IBM collected more than 9,000 patents in 2017 alone. It uses that massive storehouse of IP to fuel a licensing business that earns more than $1 billion per yearIn some cases, that means IBM can let other companies battle for dominance in a particular sector, then step in and demand licensing payments when it's clear who can pay. There's less need for IBM to build new social media apps, when the company can use a patent threat to collect $36 million from Twitter right before its IPO. There's less need to build an e-commerce business, when IBM can sue Amazon over an "electronic catalog" patent that dates back to 1994.Make no mistake: IBM has an incentive to pile up overly broad patents like this one because these patents might allow it to extract revenues from other companies' future products. A broken patent system encourages companies to use patents, rather than products, to assure dominance in key sectors like driving communications and autonomous driving. Getting rid of Alice would only make the system worse and lead to another flood of do-it-on-a-computer patents. We hope Congress agrees.Reposted from the EFF's Stupid Patent of the Month series.

Well, let's see what government agents are claiming is reasonably suspicious these days. Ah, here it is: driving a registered vehicle on a public road. The streets are clogged with scofflaws, apparently. Thanks to the skill set of one Carlos Perez of the US Border Patrol, we can finally start putting these people away.This ultra-ridiculous assertion comes courtesy of an appealed motion to suppress that has made its way to the Fifth Circuit Court of Appeals. The government is the party doing the appealing, having come out of the losing end of Jeffrey Freeman's request to have evidence obtained during two stops by the Border Patrol tossed out.The suppression of the first stop isn't at issue as the government isn't challenging that particular suppression. But it wants to keep the evidence obtained in the second stop. The problem is Agent Perez's definition of "reasonable suspicion" isn't anywhere in the neighborhood of "reasonable." According to Perez, he stopped Freeman because he turned onto a public road that happened to bypass a Border Patrol checkpoint near Freer, Texas. Freer is 50 miles inland from the border, but the government has declared anything within 100 miles is under the control of the Border Patrol.But the road Freeman turned onto (FM 2050) is more than a detour around BP checkpoints. According to Perez's own testimony, a dozen homes and a handful of businesses can be accessed via FM 2050, making it far more than a way to avoid being hassled by the Border Patrol. Still, Perez insisted the road was only used by those transporting illegal immigrants or contraband, turning residents and business owners (along with their employees) into criminals that just haven't been caught yet.According to Perez, the BP stops almost every vehicle that turns onto FM 2050, reasoning that the very act of driving a public road is suspicious enough to justify a stop. Even Perez's own experience contradicts the narrative he's pushing. From the opinion [PDF]:

By now, you've almost certainly heard about the latest big technology security flaw, in which Apple's FaceTime feature contains a bug that allows a caller using FaceTime to hear through the recipeient's phone while the call was still ringing. This obviously has all kinds of people all kinds of freaked out, since the bug essentially turns any iPhone into a short-burst surveillance bug. This has led some to opine that Apple, which has a fairly decent reputation from a privacy standpoint, is at risk of having that reputation torpedoed over this story.And that might be all the more the case when the public discovers that Apple was informed of this bug by a teenager and his mother in the weeks running up to the press coverage of it, and did nothing about it.

You'd think we wouldn't need any more data points on asset forfeiture abuse, but since many states still allow law enforcement to steal cash and personal property from people never even accused of criminal acts, maybe more data points are needed to show lawmakers why this abhorrent practice should be ended.The Greenville News has put together an in-depth report on asset forfeiture in South Carolina, culled from asset forfeiture cases run through the state's court system. What it found is unsurprising, but still shocking. The article opens with a small sampling of injustices perpetrated by the criminal justice system.

By now we've established pretty clearly that the well-hyped "internet of things" sector couldn't actually care less about security or privacy. Companies are in such a rush to cash in on our collective thirst for internet connected tea kettles and not-so-smart televisions, they don't much care if your new gadget was easily hacked or integrated into a DDoS botnet. And by the time security and privacy flaws have been discovered, companies and consumers alike are off to hyperventilate about the next must-have gadget, leaving untold millions of devices in the wild as new potential points of entry into home and business networks.While most countries hem and haw without doing much of anything about the problem, Japan's government this week proposed a unique legislative solution. A new Japanese law (pdf) passed this week authorizes the Japanese government to actually hack into poorly-secured internet of things devices as part of the country's attempt to conduct a survey measuring the real scale of the problem:

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It's been a few years since we last had to write about the Authors Guild -- a group that ostensibly represents authors' interests, but really acts more like a front group for publishers' interests (often in opposition to the actual interests of authors). As you may recall, the Authors Guild spent tons of the money authors gave it for dues on suing libraries. Specifically it sued and lost against Hathitrust (a collection of libraries which were scanning books to make a searchable index), and then had the same result with Google and its book scanning project. In both cases, the courts deemed such scanning and indexing as fair use -- a transformative use of the work.Apparently, unable to comprehend that maybe it shouldn't attack libraries, the Authors Guild is at it again, threatening the Internet Archive and other libraries for daring to start a carefully designed program to lend out copies of some of their scanned works. The system, called Controlled Digital Lending was put together by a bunch of libraries and the Internet Archive to lay out a system that they believe is clearly covered by fair use, by which digital scans of certain books could be made available on loan like any other library book. The whole setup of the Controlled Digital Lending system is carefully laid out and designed to mimic traditional library lending.

Last year, you probably recall that former Wisconsin Governor Scott Walker signed a "revolutionary" deal: the state promised Taiwan-based Foxconn a $3 billion state subsidy if the company invested $10 billion in a Wisconsin plant that would create 13,000 jobs. Walker hoped the deal would finally help cement job growth that he had been promising supporters for years, and the press was quick to hype the plan without really focusing too much on the math, or Foxconn's history of not really living up to similar promises in countries like Vietnam, India, and Brazil.Quietly buried under the blistering hype (greatly fueled by the Trump administration), groups like Wisconsin’s non-partisan Legislative Fiscal Bureau began to point out that it would take until 2043 for taxpayers to recoup the subsidy. And as the finer details of the plan began to emerge late last year, the $3 billion subsidy quickly ballooned to $4.1 billion, leading some to point out that the math no longer made sense at all and, with an unemployment rate of 3.2% and a $100,000 per job subsidy, it was technically impossible for the massive subsidy to ever be repaid (in jobs, walnuts, or anything else).Worse, as the project moved along and subsidies ballooned, the scale of the project began to shrink. An excellent report at The Verge last October noted how the original plan for a 20 million square foot factory that would build 10-foot by 11-foot panels for 75-inch TV screens, slowly shrunk to a Generation 6 plant that only produces 5-foot by 6-foot glass panels, and with original plans for $10 billion worth of investment (Foxconn's original promise) also shrinking to a $2.5 billion investment. Walkers response to the dubious deal was, it should be noted, that critics should "suck lemons":

Despite the long list of bad news generated by electronic voting machines, their market share only continues to grow. Rather than consider them the attack vectors they are, state and county legislators have decided to toss caution and paper ballots to the wind. The future is now. And it's riddled with vulnerabilities.Maybe there shouldn't be a rush to digitize the democratic process, at least not while manufacturers are still shipping machines pre-loaded with security flaws and inadequate software. The push for e-voting machine deployment isn't organic, of course. It's an organized push that starts with the machines' manufacturers and ends in regulatory capture.Sue Halpern has exposed the paper trail connect voting machine manufacturers to ill-advised rollouts in her article for the New Yorker. The heaviest pushes target legislatures that make purchasing calls for the entire state. Most states allow the decision to be made at the county level, which decreases the chance the entire state will be affected by voting machine hacking or malfunctions. But in states like Georgia and Delaware, a successful pitch to the state legislature can mean hundreds of millions of dollars in sales.The pay-for-play begins in the usual way: paid junkets that take state advisory boards to major cities for the usual wine/dine/schmooze-fests with all expenses paid. An investigation by McClatchy showed the Governor Brian Kemp's chief of staff, David Dove, attended an event held by voting machine manufacturer ES&S (Election Systems & Software) -- timed impeccably to capture the state's $100 million voting machine market. To the surprise of no one, the state's election commission decided to award ES&S this contract. But it had to do so over the voices of non-purchased stakeholders who saw nothing good in replacing one faulty e-voting machine with a similarly faulty product.

When it comes to the idea of members of the public live-streaming video game gameplay, the world is an unpredictable place. Some developers and publishers are happy to allow such a display of their products, understanding a concept that is apparently difficult for others to grasp: playing a game is a very different thing than watching someone else play it. Those that are less permissive in streaming gameplay are typically the larger corporate interests that tend to believe in control above all else, with the attitude being that unveiling gameplay will make it less likely for viewers to buy a game, rather than more likely. In between is a truly broad spectrum, where some publishers lay out rules on websites and others say little to nothing on the topic that isn't vomited up by their legal teams.Leave it to Disney, then, to put its stamp on the latest iteration of the Kingdom Hearts series, with a message to anyone that would consider streaming the game right there on the title screen.

The government isn't done jerking around security researcher Justin Shafer quite yet. Shafer came across a bunch of dental patient information in an improperly secured database. This discovery led to the FTC levying a $250,000 fine against the software provider, Schein, for falsely portraying its faux encryption as actual encryption. After notifying affected parties, Shafer was thanked for his help with a raid by FBI agents.This happened days after the FTC announced its settlement with Schein. FBI agents dragged Shafer outside of his house in his boxers at 6:30 in the morning and took every electronic device in the house except for his wife's phone. His children were awakened by shouting men pointing guns at their parents.This wasn't the only time Shafer was raided. He was raided once more, again for suspicions he was engaged in illegal hacking, this time allegedly in conjunction with TheDarkOverlord. Neither of these two raids resulted in anything more than a bunch of seized electronics and Shafer's family being taught to fear, if not hate, federal agents. No charges were brought as the result of these two raids.This second raid led to Shafer directing his anger at the agent who had secured the search warrant, Special Agent Nathan Hopp. Following this raid, Shafer tracked down Hopp and Hopp's wife via social media, engaging a series of unwise (but not actually threatening) confrontations with the agent's wife. In one message to her, he implored SA Hopp's wife to return video recordings of his children, which had been seized along with everything else.This led to a third raid by FBI agents -- this time in response to Shafer's alleged "threats." Shafer was released on bail, but quickly sent back to jail after he vented about his treatment by the FBI in an ill-advised blog post. Shafer spent eight months in jail before finally being released. The DOJ pursued a superseding indictment, most likely because its original indictment failed to impress the judge presiding over Shafer's case.The situation got even more petty and bizarre when the DOJ demanded Twitter hand over info of all accounts engaged in a conversation about Special Agent Hopp -- one that culminated in Justin Shafer delivering an apparently threatening smiley face emoji. Most of the convo participants were easily identified, making this weird flex by the DOJ a vulgar display of stupidity and vindictiveness.Last March, the cavalcade of petty stupidity finally came to a close. Well, almost. Shafer signed a plea agreement with the DOJ, pleading guilty to a single count of retaliating against a federal official. (The FBI's multiple acts of retaliation against Shafer are apparently within the bounds of the law…) Shafer has finished his probation and done everything he's supposed to, but the government isn't holding up its end of the bargain.According to his plea agreement [PDF], the government could choose to seize one specific set of data. Under "Financial Obligations," the plea agreement specifies:

A couple months ago, we launched the beta test of a revamped version of Techdirt with some key new features, most importantly a responsive design for a better experience on phones and other devices. As we noted, it wasn't about diving into a big redesign, but incrementally improving the blog, for a variety of reasons.Today, we're coming out of beta and turning on the new version of Techdirt for all users!Apart from some small adjustments to the layout and sizing, very little has changed if you're viewing the site on a desktop or laptop screen — but if you're on a mobile device, you'll see we've changed everything to fit naturally on any size of screen. We're not blazing any trails here: this is something we've needed to do for quite a while now, and we're excited to finally launch it.If you want to know more about the strategy behind the changes and a few details on the implementation, check out our post announcing the beta. And if you have feedback on the updated site, let us know via our contact form or on Twitter!

In just a few short months, "deep fakes" are striking fear in technology experts and lawmakers. Already there are legislative proposals, a law review article, national security commentaries, and dozens of opinion pieces claiming that this new deep fake technology — which uses artificial intelligence to produce realistic-looking simulated videos — will spell the end of truth in media as we know it.But will that future come to pass?Much of the fear of deep fakes stems from the assumption that this is a fundamentally new, game-changing technology that society has not faced before. But deep fakes are really nothing new; history is littered with deceptive practices — from Hannibal's fake war camp to Will Rogers' too-real impersonation of President Truman to Stalin's disappearing of enemies from photographs. And society's reaction to another recent technological tool of media deception — digital photo editing and Photoshop — teaches important lessons that provide insight into deep fakes’ likely impact on society.In 1990, Adobe released the groundbreaking Adobe Photoshop to compete in the quickly-evolving digital photograph editing market. This technology, and myriad competitors that failed to reach the eventual popularity of Photoshop, allowed the user to digitally alter real photographs uploaded into the program. While competing services needed some expertise to use, Adobe designed Photoshop to be user-friendly and accessible to anyone with a Macintosh computer.With the new capabilities came new concerns. That same year, Newsweek published an article called, “When Photographs Lie.” As Newsweek predicted, the consequences of this rise in photographic manipulation techniques could be disastrous: “Take China's leaders, who last year tried to bar photographers from exposing [the leaders’] lies about the Beijing massacre. In the future, the Chinese or others with something to hide wouldn't even worry about photographers.”These concerns were not entirely without merit. Fred Ritchin, formerly the picture editor of The New York Times Magazine who is now the Dean Emeritus of the International Center of Photography School, has continued to argue that trust in photography has eroded over the past few decades thanks to photo-editing technology:

Another day, another Facebook privacy mess. Actually, this one is a few different privacy messes that we'll roll up into a single post because, honestly, who can keep track of them all these days? While we've noted that the media is frequently guilty of exaggerating or misunderstanding certain claims about Facebook and privacy, Facebook does continue to do a really, really awful job concerning how it handles privacy and its transparency about these things with its users. And that's a problem that comes from the executive team, who still doesn't seem to fully comprehend what a mess they have on their hands.The latest flaps both involve questionable behavior targeted at younger Facebook users. First there's a followup on a story we wrote about a few weeks ago, involving internal Facebook documents showing staffers gleefully refusing to refund money spent unwittingly by kids on games on the Facebook platform. Reveal, from the Center for Investigative Reporting, who broke that story, also had a much more detailed and much more damning followup, about how Facebook was clearly knowingly duping young children out of their parents' money.

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A federal judge in Arkansas has delivered a truly WTF First Amendment decision related to a state's anti-Israel-boycott law. The law states that companies contracting with government entities cannot engage in boycotts of Israeli products or services. Those doing so are either forbidden from doing business with the state government or forced to sell their products/services at a substantial discount.In this case, the Arkansas Times' steady business relationship with an Arkansas college has been disrupted by the Arkansas law seeking to punish businesses that engage in boycotts of Israel. Every company doing business with Arkansas government entities must sign a certification stating they are not boycotting Israel. The law has been in effect since 2017, but this year the Times refused to sign the required certification. This refusal cost the paper its advertising contract with the school, since the only other option under the boycott law was to sell its services at a mandated 20% discount.The Times sued with the assistance of the ACLU, seeking to have this law found unconstitutional. So far, the ACLU has managed to get similar laws blocked/rewritten in two other states. The judge in this case, Brian S. Miller, even points to the ACLU's successful lawsuits, but still manages to come to the opposite -- and insane -- conclusion that participating in a boycott is not protected speech. From the order [PDF] denying the Arkansas Times' request for an injunction:

We've repeatedly explained how T-Mobile and Sprint's latest attempt to merge will be terrible for both jobs and competition. Despite what T-Mobile and Sprint executives have claimed, history suggests the reduction of total wireless carriers from four to three will likely result in less incentive than ever to seriously compete on price. Similarly, while T-Mobile and Sprint have told regulators that the deal will somehow create an explosion in new jobs, Wall Street analysts have predicted that the deal could kill off tens of thousands of US jobs as the new company inevitably eliminates redundant positions.This was the same Sprint, T-Mobile merger that had been blocked previously by lawmakers. And it's not a far cry from AT&T's attempted takeover of T-Mobile, which was also blocked back in 2011. Generally speaking, people have recognized that reducing overall competitors in a telecom market never quite works out well for anybody other than executives and investors. Yet here we are, once again, with folks oddly not quite understanding that reality.Case in point, Anna Eshoo and numerous other House lawmakers fired off a letter (pdf) this week to both the DOJ and FCC urging both agencies to approve the merger post-haste. One of the cornerstones of the letter is that the merger is essential for the US quest to deploy 5G networks, something the carriers themselves at various points have admitted is not actually true. It also repeats the claim that eliminating one of just four competitors will somehow increase competition, something disproven by any economics 101 textbook (and 50 years of telecom history, including Canada's).But, as is usually the case when it comes to breathless support for harmful megamergers, the letter's primary claim is that the deal will somehow create all manner of new jobs:

While so many people have been focused on the disastrous potential of the EU's Copyright Directive, we've been mentioning lately that another EU regulation, coming up right behind it, may be much more dangerous for the internet as we know it. The EU's Terrorist Content Regulation is shaping up to be a true horror story, as we discussed in a recent podcast on the topic. As covered in that podcast, the EU is barreling forward on that regulation with little concern for the damage it will do (indeed, with little concern for showing any evidence that it's needed).The basic idea behind the regulation is that, apparently, the internet is full of horrible "terrorist content" that is doing real damage (citation needed, but none given), and therefore, any online platform (including small ones) will be required to remove content based on the demands of basically anyone insisting they represent a government or law enforcement authority, within one hour of the report being sent, or the site will face crippling liability. On top of that, the regulation will create incentives for internet platforms to monitor all speech and proactively block lots of speech with little to no recourse. It's a really, really bad idea, and everyone is so focused elsewhere that there hasn't been that much public outcry about it.The group WITNESS, which helps people -- be they activists or just everyday citizens -- document and record human rights violations and atrocities around the globe, has teamed up with a number of other human rights groups to warn the EU just how damaging such a regulation would be:

We've seen plenty of ways in which the DMCA process has been used, and often abused, for purposes not intended by the lawmakers who crafted it. With everything from pure attempts to censor damning information to oblique fuckery heaped upon a competing business, folks have used the DMCA as a blunt tool. Given the context in which this is done, it is nearly always the case that you can't root for anyone issuing those sorts of DMCA takedownsBut perhaps we've found the exception that proves the rule. TorrentFreak has a fascinating story about a game developer that issued a DMCA notice to Steam... for its own game. Why? Well, because apparently that was the only way to wrestle back control over the game's distribution from a publisher the developer says skipped out on the publishing contract.

Gaming Like It's 1923: The Newly Public Domain Game JamOkay, we've got one last reminder that our Gaming Like It's 1923 public domain game jam ends in just two days. It's another chance to celebrate the fact that the US finally (years too late) has allowed works from 1923 to return to the public domain where they belong. We've already got over a dozen amazing entries in the contest with a nice mix of different types of games, all utilizing some newly public domain works, and building off of them to create something fun and new. You can check out the existing entries or come up with your own. And for those of you who have already been working on your games, don't forget to submit them by the end of the month (Pacific Time) where they'll be reviewed by our all-star panel of game developers and copyright experts...

As our readers surely know by now, 2019 is the first time in a long time that new works have actually entered the public domain in the US! The Internet Archive and Creative Commons hosted a celebration of this fact, and this week we're joined by IA's Lila Bailey and CC's Timothy Vollmer to talk about that event and the exciting possibilities of a re-opened public domain.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

If you've been around Techdirt for more than a few weeks, you probably know that one of our core arguments is that piracy should be seen as a competitor, not as some kind of mad demon whose antics can only be thwarted by equally demonic countermeasures. As such the solution for piracy isn't engaging in idiotic, harmful behavior (like copyright troll lawsuits or kicking people off the internet), it's to compete with piracy by offering better, cheaper products that make piracy less appealing. And no, just because you think "competing with free" isn't fair, doesn't mean this entire paragraph isn't true.Numerous studies (including our own) have shown that you beat piracy through innovation, not scorched earth tactics. But a new collaborative study out of the University of Indiana highlights how piracy, at least in moderation, can have an actively positive impact on both the health of a market and consumers alike. More specifically, the study highlights how piracy can act as a form of invisible competition that prevents both a manufacturer and a retailer from jacking up prices at an unreasonable rate:

On January 1st, a California law went into effect turning long-shielded police misconduct records into public records. Prior to its enactment, at least one law enforcement agency executed a mass purge of older records, preemptively stunting the law's effectiveness.The law has also faced legal challenges from California police unions and law enforcement agencies seeking a declaration that the law is not retroactive and PDs should only have to release misconduct records created past the date of the law's effectiveness. The state Supreme Court declined an invitation to review the law, but three police unions in Contra Costa County have managed to secure a temporary restraining order while this aspect of the law is sorted out.The law doesn't contain any language suggesting it does not apply retroactively. But it also doesn't contain any language specifically stating it applies retroactively and that's the wedge law enforcement agencies are trying to drive between themselves and their new obligations to the public. But the lawsuits aren't just coming from the law enforcement side. Agencies are now being sued for failing to turn over documents the new law says the public can obtain.

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